4th Circuit: Alien child can seek waiver of removal despite death of parent

The Board of Immigration Appeals, or BIA, erred when it found a petitioner ineligible for waiver of removal because his U.S. citizen father was no longer living, the 4th U.S. Circuit Court of Appeals has ruled.

In an opinion written by Judge Toby J. Heytens and joined by Judges Julius N. Richardson and Allison Jones Rushing, the court concluded that the relevant statute did not require the petitioner to be the son of a living U.S. citizen to be eligible for waiver of removal.

The Mar. 23 opinion is Julmice v. Garland (VLW 022-2-081).

Waiver petition

Evens Julmice applied for and received an immigrant visa as an unmarried child of a U.S. citizen while his father was alive. Julmice was later found to have misrepresented his marital status at the time of his application, which made him removable from the country.

The U.S. Attorney General has discretion pursuant to 8 U.S.C. § 1227(a)(1)(H)(i)(I) to waive removal for any alien who “is the spouse, parent, son, or daughter of a citizen of the United States.”

An immigration judge denied Julmice’s waiver request, relying on the BIA’s decision in Matter of Federiso that a deceased parent is not a qualifying relative for waiver eligibility purposes.

Julmice appealed to the BIA, noting that the 9th U.S. Circuit Court of Appeals had rejected the reasoning in Federiso and concluded that a living-parent requirement was contrary to the statute.

Without analyzing the Ninth Circuit’s reasoning, the BIA declined to revisit Federiso and affirmed the immigration judge’s decision.

Statutory silence

Heytens reviewed the BIA’s interpretation of the waiver statute under the framework set forth in Chevron, which provides traditional tools of statutory construction should be used to
determine “whether Congress has directly spoken to the precise question at issue.”

If the answer remains unclear, only then should the court move on to consider whether agency’s views on
the meaning of the meaning of the statute are reasonable, the Fourth Circuit said.

Here, Heytens wrote, the subject of the sentence in the waiver provision is “the alien seeking the waiver, and the relevant verb (‘is’) appears in the present tense.  In contrast, there is no present-tense verb (or any verb at all) applicable to the citizen parent.”

“Saying the statute is ‘silent’ about whether the parent must currently be alive is just another way of saying Congress chose not to include such a requirement, and the government cannot invoke that silence ‘to impose unilaterally novel substantive requirements beyond those’ Congress enacted.”

— Judge Toby J. Heytens

Given this, said the court, “‘an ordinary speaker of English would say that’ a still-living child remains the child of a deceased parent.”

The BIA took the position that the statute’s “silence” regarding whether the citizen parent must be living meant the court should proceed to step two of the Chevron analysis.

But the Fourth Circuit disagreed.

“Saying the statute is ‘silent’ about whether the parent must currently be alive is just another way of saying Congress chose not to include such a requirement, and the government cannot invoke that silence ‘to impose unilaterally novel substantive requirements beyond those’ Congress enacted,” Heytens wrote.

The court said that the BIA’s argument that Julmice was no longer the child of a U.S. citizen because his father was no longer a citizen after his death fails because “[t]he statute asks whether Julmice ‘is’ the son of a U.S. citizen, not whether his father is still a U.S. citizen following the father’s death.”

Finding that “other provisions of the Immigration and Nationality Act repeatedly refer to ‘citizens’ in situations where context makes clear the citizen in question may — or even in one instance, must — be deceased,” the Fourth Circuit vacated and remanded the BIA’s decision.

Julmice was represented by Jennifer S. Varughese of Roth Jackson Gibbons Condlin in McLean. Varughese said she had never seen a case like Julmice’s but felt the decision was a “no-brainer” after reading the Ninth Circuit’s reversal of Federiso.  She said other attorneys have told her they expect this decision will help their clients in seeking removal waivers.